The High Court recently rejected a challenge to the will of a woman who had experienced memory issues prior to making it.
The woman had made the will in 2008. She left her interest in her and her husband’s house to her elder daughter. After bequests of jewellery, 25 per cent of her residuary estate was to go to her son and another 25 per cent to her younger daughter’s children. The will specifically stated that she had made no provision for her younger daughter, from whom she had been estranged at the time, and did not wish her to benefit from her estate.
In 2006 her GP had referred her to a memory clinic after she complained of experiencing issues with her memory over the previous year. Memory assessments at the time, and after the will was made, indicated normal cognitive function. However, she was diagnosed with dementia in 2011. She died in 2018, at the age of 85.
Her elder daughter sought to propound the will. Her younger daughter and the estate of her son, who had died in 2023, challenged the will’s validity on the grounds of lack of testamentary capacity, undue influence and want of knowledge and approval.
In the Court’s view, the will was not itself irrational, so as to give rise to concerns about the woman’s capacity. For many years, she had felt deeply wounded by her younger daughter’s conduct towards her and they had been estranged. Her persistent attitude towards her younger daughter made her exclusion from the will unsurprising. The disparity between the provision for her elder daughter and her son was stark but not irrational. Her elder daughter had been a constant support for her and their relationship had been particularly close. The Court had no difficulty in finding that the woman had had testamentary capacity.
Turning to the question of undue influence, the Court observed that, when the will was made, the woman had been physically and mentally worn by a combination of her own ill health, the pressures of caring for her husband, and her misery at the breakdown of her relationship with her younger daughter. While she would probably have been more vulnerable to pressure from her elder daughter, that was not evidence that such pressure had been exercised. The Court found that she had made the will as a free agent.
The Court noted that it is for the party propounding a will to prove that the testator knew and approved its contents. The Court was fully satisfied that the will represented the woman’s testamentary intentions and had been made with her knowledge and approval. The elder daughter had discharged the burden of proof. The Court rejected the challenges to the will and pronounced in favour of it.